Family Law Flashcards
Ceremonial (Statutory) Marriage
(1) Parties must obtain and license and (2) Participate in a ceremony (Solemnization) =
Ceremonial Marriage License Requirements
- Need capacity to marry—minimum age restrictions; parental consent for young
- Waiting period between date of marriage and date of ceremony
- Medical testing—state can mandate testing, but cannot condition a license on the results
- Expiration date—most states impose an expiration date on a marriage license
When is a Marriage License Not Issued
- One party is married to someone else
- The parties are too closely related
- The marriage is a “sham”
- The parties are incapable of understanding the nature of the act
- One or both parties is under the influence of drugs or alcohol
- A party lacks consent due to duress or fraud
Solemnization
Solemnization = Ceremony
- Must be performed in front of two or more witnesses
- A judge, political official, or member of the clergy must solemnize the marriage
Common Law Marriage Requirements
(1) the parties agree they are married,
(2) cohabit as married, and
(3) hold themselves out to the public as married
Legal/Mental capacity—of age, not too closely related, understands nature of the act
Intent—must be evidenced by words in the present tense (e.g., “we are married”)
* Only recognized in 9 states
Why would a marriage valid on one state not be valid in another state?
Under conflict of law principles, a marriage that is valid under the law of the place it which it was contracted is valid elsewhere unless it violates a strong public policy.
Heartbalm Action
A civil suit for money damages based on the damage to a jilted party’s reputation
abolished in most states
2 Ways to End a Marriage
(1) Annulment—voids a marriage and declares it as having never been valid
(2) Divorce (Fault and No-Fault)
Void vs Voidable Marriage
Grounds for Each
Void Marriage—treated as if it never happened; does not need to be judicially dissolved; not legally recognized for any person
- Prior Exisiting Marriage (later marriage is void; some states allow the marriage to become valid if one party had a good faith belief that the marriage was valid and the impediment is removed)
- Incest
- Mental Incapacity (a person who is unable to understand the nature of the marriage contrat acks the cpaacity to marry)
Voidable Marraige—Valid until a judicial decree dissolves the marriage
- Age
- Impotence
- Intoxication
- Fraud
- Duress
- Lack of Intent
Defenses to a Void Marriage
the only defense is to deny the existence of the impediment that makes the marriage void
removing the impediment makes the marriage voidable
Defenses to Voidable Marriage
Equitable defense of unclean hands, laches and estoppel are recognized
Putative Marriage/Spouse Doctrine
a party who particiapted in a ceremonial marriage and belives in good faith that the marriage is valid may use a state’s divorce provisions even if the marriage is later found to be void
Divorce Requiement
Residency Requirement–most states require at least one party to be a resident
No Fault Divorce
Marriage is irretrievably broken and there is no prospect of reconciliation
Irreconcilable difference must exist for a specific period of time prior to the filing of the divorce action
Grounds for Fault Divorce
- Adultury—it must be shown that the spouse had the opportunity and the inclination to commit adultery; usually proven by circumstantial evidence
- Cruelty—the plaintiff must demonstrate a course of conduct by the other party that is harmful to the plaintiff’s physical or mental health and the makes continued cohabitation between the parties unsafe or improper
- Desretion—results when one spouse voluntarily leaves the marital home with the intent to remain apart on a permanent basis; does not apply if the parties separate by mutual consent
- Habitual Drunkenness—frequent intoxication that impairs the marital relationship
- Bigamy—when one party knowingly entered into a prior legal and existing marriage before entering into the current marriage
- Imprisonment—of one spouse for a specified period of time
- Institutionalization for Insanity—with no reasonable prospect of discharge or rehabilitation
Defenses to a Fault-Based Divorce
Must affirmatively pleaded
- Recrimination
- Unclean Hands
- Connivance
- Condonation
- Collusion
- Provation, Insanity
- Consent
- Justification
- Religion
2 Ways to Distribute Property Upon the End of a Marriage
(1) Community Property—most community property states require equal division of martial property
(2) Equitable Distribution—objective is fair distribution of marital proeprty, not necessarily equal division
Marital Property
Most states—all property acquired during marriage
Some States—all property owned by either spoouse (hotchpot approach)
Burden of Proof—on party assserting property is nonmarital
Non-Marital Property (Seperate Property)
(1) Property acquired before the marriage
(2) Property excluded by the parties’ valid agreement
(3) Property acquired by gift or inheritance (except gifts between spouses)
(4) Any award or settlement payment recieved for a cause of action or claim that accured before the marriage, regardless of when the payment was recieved
Factors Considered for Distribution of Marital proeprty
- length of marriage
- prior marriages
- age
- health
- earnings
- earning potential
- liabilities
- needs of both spouses
- contributions to education
- income
- medical needs
- retirement of both spouses
- homemaking
- child-rearing services
- value of separate property
- reduction in valuation in marital property by one spouse
- standard of living
- economic circumstances of each spouse at time of divorce
- custody of any minor children
Treatment of Personal injury claim proceeds/workers’ compensation award
Some states—if the cause of action accrued during marriage, the proceeds or award are marital property
Other states—allocate the proceeds or award between martial property and separate property
- Damages for pain/suffering/disability—separate property of the injured spouse
- Consortium losses—separate property of the non-injured spouse
- Awards for lost wages, loss of earning capacity, and medical expenses— typically split between marital and separate property based on the portion of the award attributable from the time of the accident to the end of the marriage (marital property), and the portion attributable to loss of wages or medical expenses after the termination of the marriage (separate property)
Treatment of
Professional licenses/degrees
Retirement or pension benefits
Goodwill
Accumulated sick and vacation days
Expectancy interest in property
Social Security benefits
Post-separation property
Unexercised stock options
Professional licenses/degrees—not a property interest, but can affect alimony
Retirement or pension benefits—marital property if acquired during the marriage
Goodwill—the reputation and clientele of a professional practice is considered marital property in some states
Accumulated sick and vacation days—states split on classification, timing
Expectancy interest in property—not distributable
Social Security benefits—not subject to equitable distribution
Post-separation property—can be marital property (most states)
Unexercised stock options—marital property if acquired during marriage
Modification of Property Division
Modification—not permitted; the property division is based on the parties’ assets at the time of the divorce
Types of Custody
Legal custody—the right of a parent to make major decisions about the child’s life (e.g., health, education, religion)
Physical custody—the right of a parent to have the child reside with the parent and the obligation to provide for routine daily care and control of the child
Joint custody
- Parents must both be willing and able to cooperate with respect to the wellbeing of the child
- Joint legal custody—neither parent has a superior right to make major decisions
- Joint physical custody—does not necessarily require 50-50 time-sharing arrangement
